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2021 DIGILAW 340 (UTT)

NEEMA TIWARI v. STATE OF UTTARAKHAND

2021-07-05

SHARAD KUMAR SHARMA

body2021
JUDGMENT Hon'ble Sharad Kumar Sharma, J. In pursuance to the order passed by this Court on 01.07.2021, the officers-respondent nos.2 and 3 are present in person before this Court. 2. The brief facts, which engages consideration in the writ petition are that it's a very sorry State of Affairs, which has been expressed in the present writ petition at the behest of respondent nos.2, 3 and 4; while dealing with the rights, in matters of the retiral benefits of the retired employees and in the instant case particularly the widow of the deceased employee, who has died on 15.05.2021. 3. The facts, which engages considerations are that Mr. Bhawani Dutt Tiwari, who was the late husband of the present petitioner, had retired from the services of respondents, from the post of Senior Clerk from Lohaghat Depot of Uttarakhand Transport Corporation, on 31.09.2015. The admitted position is that on the date when, he had attained the age of superannuation, he was carrying a grade pay of Rs.4200/-. But despite of having retired in 2015, even after the lapse 5 years of retirement, Late Mr. Bhawani Dutt Tiwari, was not paid the remaining dues amount which he contends that was payable, if it was determined on the basis of the last grade pay drawn by him, and paid to the Late husband of the petitioner a sum of Rs.4,04,910/- was due to be paid, as on 17.02.2021. 4. The petitioner's contention is that Mr. Bhawani Dutt Tiwari, who was suffering from cancer, ultimately since there was a financial crunch to meet up the expenses of the proper medical facilities, to be provided to the deceased, husband of the petitioner, the petitioner has claimed for an interim amount at least to be paid by respondent no.3, which was a request forwarded by respondent no.3 to respondent 2 vide it's Correspondence No.459 dated 26.09.2015. But however, later on for the reasons, which has been expressed in the Impugned Order No.72 dated 08.04.2021, in fact, the grade pay, which was being paid to the Late husband of the petitioner of Rs.4200/- was unilaterally reduced to Rs.2800/- to the 2nd ACP grade pay, on the basis of certain objections, which is said to have been made against the benefit, which was granted to the Late husband of the petitioner. In fact, if the impugned order of 08.04.2021 itself is taken into consideration, it was passed not only after the attainment of the age of superannuation of the Late husband of the petitioner on 31.09.2015 i.e. after 5 years, but rather a month before the death of the Late employee of the respondents i.e. on 15.05.2021 that the action has been taken by the respondents by passing the impugned orders; whereby the grade pay, which was being paid to the Late husband of the petitioner was reduced. If the order is taken into consideration rather, in fact it's very peculiar in nature and the wisdom, which prevailed with the officers for taking an action it was only after the attainment of age of retirement and even just a month before the death of the employee, and it was based upon facts and an incidents which were prior to the attainment of age of retirement. Not even that if at all, there was any sanctity in taking any action, as it had been reflected in the impugned order dated 08.04.2021, there is nothing on record to show that respondent no.3, had provided any opportunity of hearing to the petitioner, who is the widow of Late employee prior to taking a decision of reduction of the grade pay and treating the eight years and twenty eight days of services as leave without pay. 5. Rather to the contrary, it was observed that the 2nd ACP, which was granted on 23.11.2012 of Rs.2800/- that would be sustained to be paid to the Late husband of the petitioner on the date of his retirement meaning thereby there was consequential reduction of grade pay of Rs.4200/-, which was already paid to the late husband of the petitioner. 6. Apparently, this order would be punitive in nature and will have a civil consequences. 6. Apparently, this order would be punitive in nature and will have a civil consequences. The Corporation, which is a creation of a Statute and is statutory in nature will fall to be within the ambit of definition of State as provided under Article 12 of the Constitution of India, and before taking any punitive action of reducing the benefit of a retired employee having financial implication, and particularly when, who is now no more surviving, at least, reasonably under law it was expected that respondent nos.2 and 3 at whose behest the action has been taken, they ought to have provided an opportunity of hearing to the petitioner; before taking any action, as it was envisaged by the impugned order of 08.04.2021. This Court, while entertaining this writ petition had called the respondent no.3, to appear in person before the Court on 30.06.2021, in order to justify his stand, which had been taken by him, in the impugned order passed by him of reducing the scale of the deceased employee, who retired five years back in 2015. In response thereto, on 30.06.2021, the respondent no.3, who appeared in person instead of shouldering his burden of responsibility of passing the order of 08.04.2021, he has made a statement before the Court that since he being the subordinate employee, he was bound by the directions given which were given to him, by the superior authority i.e. respondent no.2 herein-The Controller of Finance Department of Uttarakhand Transport Corporation, and it was on his dictates that the impugned order of 08.04.2021 has been passed. 7. This Court intended to take an action against respondent nos.2 and 3, but before doing so, the Court thought it to be appropriate to call for a reply from them by passing an order on 01.07.2021, as Court intended to take a punitive action against them on account of the conduct and the responsibility, with which they have discharged their official responsibility, attached to their office. The respondents in compliance thereto, they have filed their respective affidavits by way of a short counter affidavit on 03.07.2021, and in which, particularly we will be dealing with the short counter affidavit, which has been filed by respondent no.2, who had without annexing the order had submitted that the order dated 08.04.2021, which was passed by the Regional Manager (Operation), withdrawing the benefit of 3rd ACP, which has been amended to a grade pay of Rs.2800/- from 23.11.2012. Ultimately, they have found that the order of 08.04.2021, cannot be sustained and hence, the same was withdrawn and in lieu thereof, a cheque was prepared for the remittance of the balance amount, which was alleged to be due to payable to the petitioner. 8. However, in the short counter affidavit, which has been filed, except for the statement made in para 6, there is nothing on record to show that the respondents have passed any specific order in writing of withdrawing the order of 08.04.2021, except that in support thereto they have annexed with a cheque of 02.07.2021, which they are contemplating it as to be an order, amounting to withdrawing the order of 08.04.2021. 9. This Court expresses its deep anguish, that the manner in which the respondents have proceeded to take an action against the widow of deceased employee, is unbecoming an officer of a Statutory Corporation. It is nothing but a deliberate attempt in violation of principles of nature justice, to take a punitive action against the widow of a retired employee, who died on 15.05.2021 due to cancer after his retirement in 2015 and the action itself has been taken after five years of attainment of his retirement on 30.09.2015. Hence, this Court observes, that let this order may be placed on record before the Managing Director for taking cognizance of the observations made and the manner in which the Corporation, has proceeded to take an action by passing the impugned order dated 08.04.2021 in utter violation of principles of natural justice. Hence, this Court observes, that let this order may be placed on record before the Managing Director for taking cognizance of the observations made and the manner in which the Corporation, has proceeded to take an action by passing the impugned order dated 08.04.2021 in utter violation of principles of natural justice. But on an overall scrutiny of short counter affidavit, so far as the grievance of the petitioner emanating from the order dated 08.04.2021, which was passed by respondent no.3 is concerned, since the same has been stated to have been withdrawn and the balance benefit has been shown to have been remitted by way of preparation of a cheque, to be paid to the petitioner, as on date, no grievance as such for the petitioner as against the order of 08.04.2021 survives. But however, it is clarified that after passing of today's order still if any action survives for the petitioner, it will be open for the petitioner to approach this Court by filing an application in this writ petition for taking an action, in case if the grievance is not redressed by the respondents. 10. Subject to the above observations, the writ petition stands dispose of.